Appeal No. EATS/0012/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 26 August 2003

 
Before
THE HONOURABLE LORD JOHNSTON
MISS S B AYRE
MR P M HUNTER

 

GCN (SCOTLAND) LTD	APPELLANTS

 

 
PETER CONNOR	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mr P Santoni, Solicitor
Of-
Messrs Freelands
Solicitors
139 Main Street
WISHAW   ML2 7AU

 

For the Respondent

 

 

 

No Appearance
Nor Representation

 	

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the respondents against a preliminary determination by the Employment Tribunal.  The Tribunal had jurisdiction to entertain a claim under section 94 of the Employment Rights Act 1996 by reason of continuity of employment.
 
2.	Mr Santoni, who appeared for the respondents, referred us to the substance of the decision of the Tribunal which relates to the Employment Protection (Continuity of Employment) Regulations 1996.
 
3.	In their judgment, the Tribunal directed their minds to the substance of those Regulations and determined the matter in favour of the employee.
 
4.	The main point made to us by Mr Santoni, was that neither party, at the hearing before the Tribunal, made any reference to the Employment Protection (Continuity of Employment) Regulations 1996 and that, accordingly, the Tribunal had proceeded to address the matter on its own volition and without hearing parties on the subject.  One very substantial result of this was that Mr Santoni was not able to make submissions to the Tribunal on the issue of continuity or employment in fact in relation to the Regulations, and, particularly, whether there was any causal connection between the offer to re-engage and the claim being made by the employee for unfair dismissal.
 
5.	We were referred to Albion Hotels (Freshwater) Ltd v Maia e Silva [2002] IRLR 200 and County Council of Hereford & Worcester v Neale [1986] IRLR 168 both of which deal with the situation where and the Tribunal decides the matter on authorities or submissions not presented to them.
 
6.	We are entirely satisfied that as a general question of law where a Tribunal proceeds down that path, there is a major likelihood of substantial procedural unfairness and we are satisfied in this case that has occurred.  We therefore need take the matter no further.  We consider that the approach of the Tribunal for this reason is flawed and the decision cannot stand.  It is very unfortunate that the application for review was not granted as it would have resolved the problem.
 
7.	We therefore offer no further view as to the interpretation of the Regulations at this stage.
 
8.	In these circumstances the appeal will allowed and the case will be remitted to a fresh Employment Tribunal for a rehearing on the preliminary issue.